Civil Justice System Flashcards
Why did L. Woolf criticised lawyers who withhold information?
Bcos it contributed to an adversarial culture.
Lawyers who refused to cooperate or disclose documents needed to be tackled and addressed
What did Henry L.J said in ‘Thermawear v Linton (1995)’ with regards to the judiciary?
A ‘more interventionist judiciary’
Solution to problems such as ‘delay n high costs that were disproportionate to the claim.’
How was the Civil Justice System prior to the Woolf reforms like?
Plagued with issues such as delays in litigation, resulting in stress and financial strain.
Financially subservient parties had little choice but to accept unfair settlements.
Statistics have shown that 90-95% settled due to immense pressure, I.e. fear of escalating legal costs due to delays.
What are the 3 issues identified by the Heilbron Hodge Report (1993) ?
Delays in litigation were endemic
Procedures were inflexible
Use of technology was scare
What are the problems the Interim Report 1993 identified?
3 main problems
Cost, delay and complexity.
Reasons?
Haphazard nature of litigations process
No clear judicial responsibility for managing cases individually and administration of the courts
Absence or rules, excessive expenses, disproportionate, unpredictable and unreasonable delays
In brief, what are the 4 measures implemented by the Woolf Reforms?
First
Standardised rules for both CC n HC. User friendly vocab
Second
Encouraged ADR and settlement
Thirdly
Judges now do case management.
Fourthly
Imposed sanctions and strike out
The Woolf reforms introduced standardisation of rules for both CC n HC with the exception of what kind of cases?
Insolvency
Family
Non-contentious probate proceedings
What are the 4 methods of ADR?
Arbitration
Mediation
Tribunals
Reconciliation
What are the benefits of the ADR method?
Faster
More effective
Save the parties the hassle of long and costly trial
What does Rule 1.4 of the new CPR says?
Courts are to play a more pro-active role in case management.
Sanctions such as cash penalties may be imposed by a procedural judge for non-compliance of orders n due dates
What technology have been implemented post Woolf?
Technology such as video and teleconferencing were implemented
Cases are now subject to a timetable coupled with a computerised diary monitoring system, resulting in fewer delays
What does the new CPR encourages in terms of ADR?
Parties are encouraged to settle instead of going to court
Parties are encouraged to cooperate w each other during proceedings
Encouraged sharing of information and details through close door hearings
What is the take away of the ‘Cowl’ case 2001?
L. Woolf refused permission for judicial review on grounds that the complainant had not exhausted internal complains procedures and had not tried out mediation
Take away for ‘Dunnett v Railtrack (2001)’ n ‘Hurst v Leeming (2002)?
Courts held that a party believing that it had a watertight case is not a good reason to refuse mediation.
What did the courts say about ADR in Helsey (2004)?
ADR is an important part of the legal aystem
How did the Woolf reforms changed litigants view of going to court?
Litigation or going to court is now seen as a last resort
What did Prof Michael Zander critique about the Woolf reforms?
Fundamentally flawed.
The cause is not due to the adversarial systems played by lawyers, but its due 7 different causes
Case management is suitable only for minority of cases. Judges do not have the time, skill or inclination to carry out such task
Judges do not know enough about the workings in the solicitor’s office to draw up suitable timetable
What is the difference in objectives between the Civil n Criminal Justice System?
Civil is compensatory in nature, seeking to restore parties to the position before actual loss / damage
Criminal is punitive in nature, focusing on crime control, the due processes and restorative / rehabilitative justice
What are 3 ways of compensation under the Civil Justice System?
Damages
Specific Performance
Injunction
What is the underlying principle that the Civil Justice system seeks to achieve?
An amicable settlement
What are the 3 main profiles of cases within the Civil Justice landscape?
Commercial, family and medical disputes
Why is L. Woolf commissioned to reform the Civil JS?
Bcos he’s the one with the most contact with appeal cases n court matters
What are the 2 differences in the judges’ approach to cases pre and post Woolf?
Pre
Judges were not interventionist
Referee / umpire over a case
Post
Interventionist
Case Manager
What are the 4 courts within the hierarchy of the Civil Justice System?
Supreme Court
Court of Appeal
High Court
County Court
What are the 3 international courts beyond the domestic courts?
Privy Council - listen to appeal cases
European Court of Justice - deals with cases involving a dispute between domestic and community laws
ECtHR - deals with Human Rights issues
What is one example of a case that is both long and costly?
Think - fast food
McDonald’s v Morris n Steel
- longest case in history (3 years)
- defamation stmts in flyers
- legal cost far exceeds cost awarded
What is one example of extra judicial responsibilities?
Delivering public speeches and lectures
Why is medical negligence a main concerned of Lord Woolf?
Because it forms a large bulk of cases with citizens increasingly being aware of their rights
AND
The NHS Trust is ‘already drained and strained’
What is the famous medical case in which the doctor was convicted of gross negligence manslaughter?
R v Adomako (1994) (HOL)
What is the take away for De Frietas v O’Brien?
Medical cases often involves a long and costly trial in which evidence are often insufficient, wasting resources for both the parties n the courts
What are the 3 articles showing that the Woolf reforms have led to a reduction in litigation due to ADR, but also said that the front loading costs increased significantly?
Emerging Findings (2001)
More Civil Justice (2002)
The management of Civil Cases (2005)
Who is Justice Burton an what did he say about the Woolf reforms?
A high court judge at the Queen’s Bench Division
Provided the 5 benefits and problems of the Woolf reform
What are the 5 benefits of the Woolf reform mentioned by Justice Burton?
Pre-action protocols
Encourage settlement
Encourage judicial intervention
Part 24 Strike out provisions
Part 36 offer to settle
What are the 5 problems of the Woolf reforms identified by Justice Burton in his 5-5 analysis?
Time inflexibility
Time guillotines on parties
Lawyers concealing documents
Experts usurping judges role
Judges making assumptions instead of relying on analysis
What did Professor John Baldwin said about the Woolf reform?
His empirical research showed that litigants were generally disillusioned with the Civil Justice System
Who is Michael Zander?
A Queen’s counsel and an academic professor
What are the 7 causes of delays in litigation pointed out by Zander?
The anatomy of the case
The parties
The judiciary
The court procedures
The court administration
The lawyers who are inexperience or inefficient
What are the 2 categories of people identified by Marc Galanter in explaining why the rich always win cases?
One-shotters v Repeat Players
OS (e.g McLibel Case)
- inexperience, not resourceful, financially incapable
RP
- large corporations, availability of legal counsels, out-litigate clients by financial means
What did Professor Genn said about the non-specialist lawyers?
She said in ‘negotiated settlements of accident claims’ that non-specialist lawyers may jeopardise an out of court claim due to unfamiliarity with claims and the eagerness in wanting their clients to settle so they can close the case, even if the offer is low
What is the family example professor Genn gave to illustrate the point on imbalance of parties?
Homemaker v Breadwinner
Homemaker might be coerced into accepting a low alimony by the breadwinner
Who is Bumiller and what is the famous model he came out with?
An American sociologist.
He came out with the Dispute Resolution Pyramid.
Citing an example of a 1000 divorce cases, of which 800 will confront the other party, 500 will seek legal representation, but only 200 will eventually end up in court.
What does the Bumiller dispute resolution pyramid seek to show?
Settlement out of court may not always be fair and palatable, therefore it is imperative that we balance both litigation and ADR and be mindful that they subsist within the intrinsic and delicate landscape of the civil justice
Who are the 3 people to discuss when considering if the Civil JS is of the right balance?
Marc Galanter, Professor Genn, Bumiller
What are the 5 things to discuss in the post Woolf analysis?
3 articles
Emerging Findings (2001)
More Civil Justice (2002)
The Management of Civil Cases (2005)
Justice Burton’s problem and benefits analysis
John Baldwin
Professor Michael Zander
What are the 6 things to discuss on pre-Woolf reforms?
Problems with the civil justice landscape
Thermawear v Linton (1995)
McDonalds v Steel n Morris
Civil justice Review 1998
Heilbron Hedge Report 1993
Interim Report 1995
